The foundations of a united Europe were laid on fundamental ideas and values to which the Member States also subscribe and which are translated into practical reality by the Community’s operational institutions. These are lasting peace, unity, equality, freedom, solidarity and security. The EU’s avowed aims are to safeguard the principles of liberty, democracy and the rule of law which are shared by all the Member States, and to protect fundamental and human rights. These values are also those to be aimed for by states wishing to join the EU in the future. In addition, penalties can be applied to any Member State which seriously and persistently breaches these values and principles. If the Heads of State or Government, acting on a proposal by one third of the Member States or by the Commission, and after obtaining the assent of the European Parliament, declare that a serious and persistent breach of the EU’s underlying values and principles has occurred, the Council may, acting by a qualified majority, suspend certain of the rights deriving from the application of the EU Treaty and the Treaty on the Functioning of the European Union to the Member State in question, including voting rights in the Council. On the other hand, the obligations on the Member State in question under the Treaties continue to be binding. Particular account is taken of the effects on the rights and obligations of citizens and enterprises.

There is no greater motivation for European unification than the desire for peace. In the last century, two world wars were waged in Europe between countries that are now Member States of the European Union. Thus, a policy for Europe means at the same time a policy for peace, and the establishment of the EU simultaneously created the centrepiece of a framework for peace in Europe that renders a war between the Member States impossible. Fifty years of peace in Europe are proof of this. The more European States that join the EU, the stronger this framework of peace will become. The last two enlargements of the EU, including 12 predominantly east and central European States, have made a major contribution in this respect.

Unity is the recurring theme. The present-day problems can be mastered only if European countries move forward along the path that leads them to unity. Many people take the view that without European integration, without the European Union, it would not be possible to secure peace (both in Europe and worldwide), democracy, law and justice, economic prosperity and social security, and guarantee them for the future. Unemployment, inadequate growth and environmental pollution have long ceased to be merely national problems, and they cannot be solved at national level. It is only in the context of the EU that a stable economic order can be established and only through joint European efforts that we can secure an international economic policy that improves the performance of the European economy and contributes to social justice. Without internal cohesion, Europe cannot assert its political and economic independence from the rest of the world, win back its influence on the international stage and regain its role in world politics.

Unity can endure only where equality is the rule. No citizen of the Union may be placed at a disadvantage or discriminated against because of his or her nationality. Discriminatory treatment on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation must be combated. The Charter of Fundamental Rights of the European Union goes still further. Any discrimination based on any ground such as colour, genetic features, language, political or any other opinion, membership of a national minority, property or birth is prohibited. In addition, all Union citizens are equal before the law. As far as the Member States are concerned, the principle of equality means that no State has precedence over another, and natural differences such as size, population and differing structures must be addressed only in accordance with the principle of equality.

Freedom results directly from peace, unity and equality. Creating a larger entity by linking 27 States affords at the same time freedom of movement beyond national frontiers. This means, in particular, freedom of movement for workers, freedom of establishment, freedom to provide services, free movement of goods and free movement of capital. These fundamental freedoms guarantee business people freedom of decision-making, workers freedom to choose their place of work and consumers freedom of choice between the greatest possible variety of products. Freedom of competition permits businesses to offer their goods and services to an incomparably wider circle of potential customers. Workers can seek employment and change job according to their own wishes and interests throughout the entire territory of the EU. Consumers can select the cheapest and best products from the far greater range of goods on offer that results from increased competition.

However, transitional rules still apply in some cases to citizens of the Member States which joined the EU on 1 May 2004 and 1 January 2007. The Accession Treaty contained exceptions in particular with regard to the free movement of workers, the freedom to provide services and the freedom of establishment. As a result, the ‘old’ EU Member States can restrict the free movement of workers who are nationals of the ‘new’ Member States for a period of up to seven years by making access to employment subject to national or bilateral law.

Solidarity is the necessary corrective to freedom, for inconsiderate exercise of freedom is always at the expense of others. For this reason, if a Community framework is to endure, it must also always recognise the solidarity of its members as a fundamental principle, and share both the advantages, i.e. prosperity, and the burdens equally and fairly among its members.

The national identities of the Member States are respected. The idea is not for the Member States to be ‘dissolved’ into the EU, but rather for them to contribute their own particular qualities. It is precisely this variety of national characteristics and identities that lends the EU its moral authority, which in turn is used for the benefit of the EU as a whole.

All of these fundamental values are ultimately dependent on security. Particularly since the attack on the USA of 11 September 2001, the fight against terrorism and organised crime in Europe has also been in the spotlight again. Police and judicial cooperation continues to be consolidated, and protection of the EU’s external borders intensified.

However, security in the European context also means the social security of all citizens living in the EU, job security and secure general economic and business conditions. In this respect, the EU institutions are called upon to make it possible for citizens and businesses to work out their future by creating the conditions on which they depend.

The fundamental values and concepts at the heart of the EU also include the fundamental rights of individual citizens of the Union. The history of Europe has for more than 200 years been characterised by continuing efforts to enhance the protection of fundamental rights. Starting with the declarations of human and civil rights in the 18th century, fundamental rights and civil liberties have now become firmly anchored in the constitutions of most civilised states. This is especially true of the EU Member States, whose legal systems are constructed on the basis of the rule of law and respect for the dignity, freedom and the right to self-development of the individual. There are also numerous international conventions on the protection of human rights, among which the European Convention on Human Rights is of very great significance.

It was not until 1969 that the Court of Justice established a body of case-law to serve as a framework of fundamental rights. This was because in the early years the Court had rejected all actions relating to basic rights on the grounds that it need not concern itself with matters falling within the scope of national constitutional law. The Court had to alter its position not least because it was itself the embodiment of the primacy of Union law and its precedence over national law; this primacy can only be firmly established if Union law is sufficient in itself to guarantee the protection of basic rights with the same legal force as under the national constitutions.

The starting point in this case-law was the Stauder judgment, in which the point at issue was the fact that a recipient of welfare benefits for war victims regarded the requirement that he give his name when registering for the purchase of butter at reduced prices at Christmas time as a violation of his human dignity and the principle of equality. Although the Court of Justice came to the conclusion, in interpreting the Community provision, that it was not necessary for recipients to give their name so that, in fact, consideration of the question of a violation of a fundamental right was superfluous, it declared finally that the general fundamental principles of the Community legal order, which the Court of Justice had to safeguard, included respect for fundamental rights. This was the first time that the Court of Justice recognised the existence of an EU framework of fundamental rights of its own.

Initially, the Court developed its safeguards for fundamental rights from a number of provisions in the Treaties. This is especially the case for the numerous bans on discrimination which, in specific circumstances, address particular aspects of the general principle of equality. Examples are the prohibition of any discrimination on grounds of nationality (Article 18 TFEU), preventing people being treated differently on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation (Article 10 TFEU), the equal treatment of goods and persons in relation to the four basic freedoms (freedom of movement of goods — Article 34 TFEU; freedom of movement of persons — Article 45 TFEU; the right of establishment — Article 49 TFEU; and freedom to provide services — Article 57 TFEU), freedom of competition (Article 101 et seq. TFEU) and equal pay for men and women (Article 157 TFEU). The four fundamental freedoms of the Community, which guarantee the basic freedoms of professional life, can also be regarded as a Community fundamental right to freedom of movement and freedom to choose and practise a profession. Explicit guarantees are also provided for the right of association (Article 153 TFEU), the right to petition (Article 24 TFEU) and the protection of business and professional secrecy (Article 339 TFEU).

The Court of Justice has steadily developed and added to these initial attempts at protecting fundamental rights through Community law. It has done this by recognising and applying general legal principles, drawing on the concepts that are common to the constitutions of the Member States and on the international conventions on the protection of human rights to whose conclusion the Member States have been party. Prominent among the latter is the European Convention on Human Rights, which helped to shape the substance of fundamental rights in the Union and the mechanisms for their protection. On this basis, the Court has recognised a number of freedoms as basic rights secured by Community law: right of ownership, freedom to engage in an occupation, the inviolability of the home, freedom of opinion, general rights of personality, the protection of the family (e.g. family members’ rights to join a migrant worker), economic freedom, freedom of religion or faith, as well as a number of fundamental procedural rights such as the right to due legal process, the principle of confidentiality of correspondence between lawyer and client (known as ‘privileged communications’ in the common-law countries), the ban on being punished twice for the same offence, or the requirement to provide justification for an EU legal act.

One particularly important principle regularly invoked in legal disputes is the principle of equal treatment. Put simply, this means that like cases must be treated alike, unless there is some objectively justifiable ground for distinguishing them. But the Court of Justice has held, contrary to international custom, that this principle does not preclude nationals and home-produced goods from being subjected to stricter requirements than citizens or products from other Member States. This ‘reverse discrimination’ is the inevitable result of the limited scope of the Union’s powers and cannot be remedied by Community law. Under the Court’s judgments issued up to now, the rules requiring liberalisation, which flow from the fundamental freedoms, apply only to cross-border trade. Rules regulating the production and marketing of home-produced goods or the legal status of nationals in their own Member State are affected by Community law only if the Union has introduced harmonisation measures.

The jurisprudence of the Court of Justice has given the Union an extensive body of quasi-constitutional law. In practical terms, the principle of proportionality is foremost among these. What it means is that the objectives pursued and the means deployed must be weighed up and an attempt made to keep them in proper balance so that the citizen is not subjected to excessive burdens. Among the other fundamental principles underlying Union law are the general principles of administrative law and the concept of due process: legitimate expectations must be protected, retroactive provisions imposing burdens or withdrawing legitimately acquired advantages are precluded and the right to due legal process — natural justice is the traditional term for this — must be secured in the administrative procedures of the Commission and the judicial procedures of the Court of Justice. Particular value is also attached to greater transparency, which means that decisions should be taken as openly as possible, and as closely as possible to the citizen. An important aspect of this transparency is that any EU citizen or legal person registered in a Member State may have access to Council or Commission documents. All grants and subsidies from the EU budget must also be disclosed to natural or legal persons by means of databases accessible to every Union citizen.

With all due respect for the achievements of the Court of Justice in the development of unwritten fundamental rights, this process of deriving ‘European fundamental rights’ had a serious disadvantage: the Court of Justice was confined to the particular case in point. It was therefore unable to develop fundamental rights from the general legal principles for all areas in which this appeared necessary or desirable. Nor was it able to elaborate the scope of and the limits to the protection of fundamental rights as generally and distinctively as was necessary. As a result, the EU institutions could not assess with enough precision whether they were in danger of violating a fundamental right or not. Nor could any Union citizen who was affected judge without further effort in every case whether one of his or her fundamental rights had been infringed.

For a long time, EU accession to the European Convention on Human Rights was regarded as a way out of this situation. In its Opinion 2/94, however, the Court held that, as the law stood, the EU had no competence to accede to the convention. The Court stated that respect for human rights was a condition for the lawfulness of EU acts. However, accession to the convention would entail a substantial change in the present Union system for the protection of human rights in that it would involve the EU entering into a distinct international institutional system as well as integration of all the provisions of the convention into the Union legal order. The Court took the view that such a modification of the system for the protection of human rights in the EU, with equally fundamental institutional implications for the Union and for the Member States, would be of constitutional significance and would therefore go beyond the scope of the dispositive powers provided for in Article 352 TFEU. The EU’s accession to the convention was therefore specifically provided for in Article 6(2) of the EU Treaty. However, the Treaty of Lisbon made a further, decisive step towards the creation of a common constitutional law for the EU and put the protection of fundamental rights in the EU on a new footing. The new article on fundamental rights in the EU Treaty (Article 6 TEU) refers to the European Union’s Charter of Fundamental Rights, declaring it to be binding for the actions of the EU institutions and the Member States, insofar as they apply and implement Union law.

This Charter of Fundamental Rights is based on a draft previously drawn up by a convention of 16 representatives of the Heads of State or Government of the Member States and of the President of the European Commission, 16 Members of the European Parliament, and 30 members of national parliaments (two from each of the then Member States) under the chairmanship of Professor Roman Herzog, and was solemnly proclaimed to be the ‘European Union’s Charter of Fundamental Rights’ by the Presidents of the European Parliament, the Council and the European Commission on 7 December 2000. During the negotiations on a European constitution, this Charter of Fundamental Rights was revised and made an integral part of the Treaty establishing a Constitution for Europe of 29 October 2004. Following the failure of the Treaty, the Charter of Fundamental Rights was again solemnly proclaimed as the ‘European Union’s Charter of Fundamental Rights’, this time as a separate instrument, by the Presidents of the European Parliament, the Council and the European Commission on 12 December 2007 in Strasbourg. The EU Treaty refers to this version of the charter in binding form. This makes the Charter of Fundamental Rights legally binding and also establishes the applicability of fundamental rights in Union law. However, this does not apply to Poland and the United Kingdom. These two Member States were unable, or did not wish, to adopt the system of fundamental rights of the charter, as they were concerned that they would be obliged to surrender or at least change certain national positions concerning, for example, religious issues or the treatment of minorities. They are therefore not bound by the fundamental rights of the charter, but by the case-law of the Court of Justice, as previously.